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Thursday, October 2, 2014

Sec. 7 and Sec. 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - High court acquitted the accused under sec.7 but convicted under sec.3(1)(d) read with Section 13(2) of the Act - complainant not supported the case of prosecution - no evidence - evidence of I.O. and Ex. P 1 marked complaint can be considered as proof of evidence - mere possession of amount can be considered as demand of bribe - Apex court held that When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW3 Kumaraswamy and the contents of Exh.P1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused. The High Court was not correct in holding the demand alleged to be made by the accused as proved. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 13(1)(d) of the Act and the conviction and sentence imposed on the appellant are liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction and sentence imposed on the appellant/accused under Section 13(1)(d) read with Section 13(2) of the Act are set aside and he is acquitted of the charges. Bail bond, if any furnished by the appellant, be released.=CRIMINAL APPEAL NO.1578 OF 2011 M.R. Purushotham … Appellant versus State of Karnataka … Respondent = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41953

 Sec. 7 and Sec. 13(1) (d)  read with  Section  13(2) of the  Prevention  of  Corruption  Act,  1988 - High court acquitted the accused under sec.7 but convicted under sec.3(1)(d)  read with  Section  13(2)  of  the  Act  - complainant not supported the case of prosecution - no evidence - evidence of I.O. and Ex. P 1 marked complaint can be considered as proof of evidence - mere possession of amount can be considered as demand of bribe - Apex court held that When PW1 Ramesh himself had disowned what he  has  stated  in  his  initial complaint in Exh.P1 before PW4 Inspector  Santosh  Kumar  and  there  is  no other evidence to prove that the accused had made any demand,  the  evidence of PW3 Kumaraswamy and the contents of Exh.P1  complaint  cannot  be  relied upon to conclude that the said material furnishes proof of demand  allegedly
made by the accused.  The High Court was not correct in holding  the  demand alleged to be made by the accused as proved.  Mere possession  and  recovery of the currency notes from the accused without  proof  of  demand  will  not bring home the offence under Section 13(1)(d) of the Act and the  conviction and sentence imposed on the appellant are liable to be set aside.
For the aforesaid reasons the appeal is  allowed  and  the  conviction and sentence imposed on the appellant/accused under  Section  13(1)(d)  read with Section 13(2) of the Act are set aside  and  he  is  acquitted  of  the charges.  Bail bond, if any furnished by the appellant, be released.=

The  High  Court  in
the impugned judgment found the appellant/accused not guilty of the  offence
under Section 7 of the  Prevention  of  Corruption  Act,  1988  (hereinafter
referred as “the Act”) but guilty of offences under  Section  13(1)(d)  read
with  Section  13(2)  of  the  Act  and  sentenced  him  to  undergo  simple
imprisonment for one year and to pay a fine  of  Rs.5000/-,  in  default  to
undergo simple imprisonment for a period of three months.=

In this context the recent decision of a three Judge bench  of
this Court in B. Jayaraj  vs.  State of Andhra Pradesh reported  in  2014(4)
Scale 81 is relevant and it is held as follows :
“8. In the present case, the complainant did  not  support  the  prosecution
case in so far as demand by the accused is concerned.  The  prosecution  has
not examined any other witness, present at  the  time  when  the  money  was
allegedly handed over to the accused by the complainant, to prove  that  the
same was pursuant to any demand made by the accused.  When  the  complainant
himself had disowned what he had stated in the  initial  complaint  (Exbt.P-
11) before LW-9, and there is no other evidence to prove  that  the  accused
had made any demand, the evidence of PW-1 and the contents of  Exhibit  P-11
cannot be relied upon to come to the  conclusion  that  the  above  material
furnishes proof of the demand  allegedly  made  by  the  accused.   We  are,
therefore, inclined to hold that the learned trial  court  as  well  as  the
High Court was not correct in holding the demand alleged to be made  by  the
accused as proved.  The only other material available  is  the  recovery  of
the tainted currency notes from the possession  of  the  accused.   In  fact
such possession is admitted by the accused  himself.   Mere  possession  and
recovery of the currency notes from the  accused  without  proof  of  demand
will not bring home the offence under Section 7.  The  above  also  will  be
conclusive in so  far  as  the  offence  under  Section  13(1)(d)(i)(ii)  is
concerned  as  in  the  absence  of  any  proof  of   demand   for   illegal
gratification, the use of corrupt or illegal means or abuse of  position  as
a public servant to obtain any valuable thing or pecuniary advantage  cannot
be held to be established.”

The above decision is squarely applicable to the facts of the present  case.

 When PW1 Ramesh himself had disowned what he  has  stated  in  his  initial
complaint in Exh.P1 before PW4 Inspector  Santosh  Kumar  and  there  is  no
other evidence to prove that the accused had made any demand,  the  evidence
of PW3 Kumaraswamy and the contents of Exh.P1  complaint  cannot  be  relied
upon to conclude that the said material furnishes proof of demand  allegedly
made by the accused.  
The High Court was not correct in holding  the  demand
alleged to be made by the accused as proved.
Mere possession  and  recovery
of the currency notes from the accused without  proof  of  demand  will  not
bring home the offence under Section 13(1)(d) of the Act and the  conviction
and sentence imposed on the appellant are liable to be set aside.
7.    For the aforesaid reasons the appeal is  allowed  and  the  conviction
and sentence imposed on the appellant/accused under  Section  13(1)(d)  read
with Section 13(2) of the Act are set aside  and  he  is  acquitted  of  the
charges.  Bail bond, if any furnished by the appellant, be released.
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41953

                                                             NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.1578 OF 2011


M.R. Purushotham                        …     Appellant

                                   versus

State of Karnataka                          …    Respondent


                               J U D G M E N T


C. NAGAPPAN, J.


1.    This appeal is directed against the judgment dated 4.1.2011 passed  by
the High Court of Karnataka at Bangalore in Criminal Appeal no.1130 of  2007
reversing the judgment of acquittal dated 8.12.2006 in  Special  Case  no.36
of 2001 passed by the Principal Special Judge, Mandya.  The  High  Court  in
the impugned judgment found the appellant/accused not guilty of the  offence
under Section 7 of the  Prevention  of  Corruption  Act,  1988  (hereinafter
referred as “the Act”) but guilty of offences under  Section  13(1)(d)  read
with  Section  13(2)  of  the  Act  and  sentenced  him  to  undergo  simple
imprisonment for one year and to pay a fine  of  Rs.5000/-,  in  default  to
undergo simple imprisonment for a period of three months.
2.     The  case  of  the  prosecution  in  brief  is  as  follows  :    The
appellant/accused was working as Second Division Surveyor in the  office  of
Assistant  Director  of  Land  Records,  Nagamangala  and  on  18.2.2000  he
demanded an illegal gratification of Rs.500/- from PW1 Ramesh  for  issuance
of survey sketch pertaining to Survey no.255 of Hullenahalli village and  it
is further alleged that though the accused had  surveyed  the  land  on  the
application of the complainant he was postponing issuance of survey  sketch,
to force PW1 Ramesh to pay bribe.  PW1 Ramesh  lodged  Exh.P1  complaint  on
18.2.2000 with Lokayukta Police on which a case came  to  be  registered  in
Crime no.1/2000 on the file of  Mandya  Lokayukta  Police  Station  for  the
alleged offences under Sections 7, 13(1)(d) read with Section 13(2)  of  the
Act.  A trap was organized and PW2 Sridhar and PW3  Kumaraswamy,  Government
servants, were directed to  be  present  as  panch  witnesses.   PW1  Ramesh
produced a sum of Rs.500/- i.e. five currency notes  of  Rs.100/-  each  and
the numbers of the said currency notes were  recorded  in  the  presence  of
panch witnesses and the currency  notes  got  smeared  with  phenolphthalein
powder.  The complainant Ramesh took  the  powder  smeared  notes  and  went
along with PW3 Kumaraswamy to  the  house  of  the  appellant/accused.   PW2
Sridhar and PW4 Inspector Santosh Kumar stood outside the said  house.   The
accused was watching T.V. inside the room and on seeing them, he  asked  PW1
Ramesh as to whether he has  brought  what  he  had  asked  and  PW1  Ramesh
answered yes and gave the currency notes of Rs.500/- and accused  took  them
by his right hand and kept the same on his table and directed PW1 Ramesh  to
come on Monday for obtaining copy of the Re-Survey.  They came out  and  PW1
Ramesh gave the signal, immediately PW4 Inspector Santosh Kumar  along  with
PW2 Sridhar went inside the house and in the solution  of  clean  water  and
sodium carbonate the right hand fingers of the  accused  was  immersed  upon
which it turned into light pink color and on  verification  the  numbers  of
the currency notes which were lying on  the  table  were  tallied  with  the
numbers of the notes written in Exh.P2 Mahazar.  All  the  formalities  were
completed and after  obtaining  sanction  charge  sheet  came  to  be  filed
against accused.
3.     The Trial Court framed charges under Sections 7, 13(1)(d)  read  with
Section  13(2)  of  the  Act  and  the  accused  pleaded  not  guilty.   The
prosecution examined four witnesses and marked Exh.P1 to P10 and M.Os. 1  to
10.  The Trial Court held that the  prosecution  has  failed  to  prove  the
charges against the accused and acquitted him.  The State  preferred  appeal
and the High Court in the impugned judgment held that  the  prosecution  has
failed to prove the offence under Section 7 of the Act and at the same  time
it proved the commission of offence under Section 13(1)(d)  by  the  accused
and consequently set aside the judgment of acquittal for said  offences  and
convicted the appellant/accused for the  offence  punishable  under  Section
13(1)(d) read with Section 13(2) of the Act  and  sentenced  him  as  stated
above.  The said judgment is under challenge in this appeal.
4.    We heard Ms. Kiran Suri, learned  senior  counsel  appearing  for  the
appellant and  Mr.  V.N.  Raghupathy,  learned  counsel  appearing  for  the
respondent State.
5.  PW1 Ramesh, the complainant did not support the  prosecution  case.   He
disowned making the complaint in Exh.P1 and stated  in  his  examination-in-
chief that the accused had not demanded anything from him  and  he  did  not
know what is written  in  Exh.P1  and  the  police  have  not  recorded  his
statement in respect to this case.  He  was,  therefore,  declared  hostile.
However, PW3 Kumaraswamy, panch  witness  has  testified  that  after  being
summoned by PW4 Inspector  Santosh  Kumar  on  18.2.2000,  the  contents  of
Exh.P1 were explained to him in the  presence  of  the  complainant  and  he
accompanied the complainant to  the  house  of  the  accused,  wherein,  the
complainant  gave  the  sum  of  Rs.500/-  to   the   accused   as   illegal
gratification.   It  is  on  the  aforesaid  basis  that  the  liability  of
appellant/accused for commission of the offences  alleged  was  held  to  be
proved, notwithstanding the fact that in his evidence  the  complainant  PW1
Ramesh had not supported the prosecution case.
6.    In such type of cases the prosecution has to prove that  there  was  a
demand and there was acceptance of illegal  gratification  by  the  accused.
As already seen the complainant PW1 Ramesh did not support  the  prosecution
case insofar as demand by the accused is concerned.  No other  evidence  was
adduced by the prosecution to prove the demand made by the accused with  the
complainant.  In this context the recent decision of a three Judge bench  of
this Court in B. Jayaraj  vs.  State of Andhra Pradesh reported  in  2014(4)
Scale 81 is relevant and it is held as follows :
“8. In the present case, the complainant did  not  support  the  prosecution
case in so far as demand by the accused is concerned.  The  prosecution  has
not examined any other witness, present at  the  time  when  the  money  was
allegedly handed over to the accused by the complainant, to prove  that  the
same was pursuant to any demand made by the accused.  When  the  complainant
himself had disowned what he had stated in the  initial  complaint  (Exbt.P-
11) before LW-9, and there is no other evidence to prove  that  the  accused
had made any demand, the evidence of PW-1 and the contents of  Exhibit  P-11
cannot be relied upon to come to the  conclusion  that  the  above  material
furnishes proof of the demand  allegedly  made  by  the  accused.   We  are,
therefore, inclined to hold that the learned trial  court  as  well  as  the
High Court was not correct in holding the demand alleged to be made  by  the
accused as proved.  The only other material available  is  the  recovery  of
the tainted currency notes from the possession  of  the  accused.   In  fact
such possession is admitted by the accused  himself.   Mere  possession  and
recovery of the currency notes from the  accused  without  proof  of  demand
will not bring home the offence under Section 7.  The  above  also  will  be
conclusive in so  far  as  the  offence  under  Section  13(1)(d)(i)(ii)  is
concerned  as  in  the  absence  of  any  proof  of   demand   for   illegal
gratification, the use of corrupt or illegal means or abuse of  position  as
a public servant to obtain any valuable thing or pecuniary advantage  cannot
be held to be established.”

The above decision is squarely applicable to the facts of the present  case.
 When PW1 Ramesh himself had disowned what he  has  stated  in  his  initial
complaint in Exh.P1 before PW4 Inspector  Santosh  Kumar  and  there  is  no
other evidence to prove that the accused had made any demand,  the  evidence
of PW3 Kumaraswamy and the contents of Exh.P1  complaint  cannot  be  relied
upon to conclude that the said material furnishes proof of demand  allegedly
made by the accused.  The High Court was not correct in holding  the  demand
alleged to be made by the accused as proved.  Mere possession  and  recovery
of the currency notes from the accused without  proof  of  demand  will  not
bring home the offence under Section 13(1)(d) of the Act and the  conviction
and sentence imposed on the appellant are liable to be set aside.
7.    For the aforesaid reasons the appeal is  allowed  and  the  conviction
and sentence imposed on the appellant/accused under  Section  13(1)(d)  read
with Section 13(2) of the Act are set aside  and  he  is  acquitted  of  the
charges.  Bail bond, if any furnished by the appellant, be released.

                                                             …….…………………...J.
(Madan B. Lokur)


                                                               .…………………………J.
(C. Nagappan)

New Delhi;
September 24, 2014


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